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EVEN MORE FAQs

[Posted July 20, 2012] I’m back from my vacation, meaner’n ever. (Although it was noticeably cooler in Alaska than it was here.) It’s been quite a while since I posted frequently asked questions, so this looks like a good time to dip back into the mailbag.

In the beginning of my oral argument, should I set forth what the facts are, or just launch into my argument?You should assume that the judges and justices are familiar with the facts. I generally begin my argument with a very short reference to the nature of the case, but I don’t go into the facts:

“Good morning; I’m Steve Emmert, and I represent the landowner in this inverse condemnation appeal.”

“May it please the court, I’m Steve Emmert, and I represent the employee in this appeal involving a covenant not to compete.”

I then tell the court what I plan to cover, and then I go immediately to the most important issue in the case. I make sure I identify that; the surest way to get the jurists’ attention is to let them know what the decisive legal issue is:

“In my view, this case will turn on one question: Whether the defense of failure to mitigate damages must be pleaded affirmatively to avoid waiving it. If you rule that it must be so pleaded, then I’m going to lose this appeal. But I can stand at this lectern with confidence that I’m not going to lose, because this court’s precedents establish that it need not be pleaded in an answer.

I got a writ from the Supreme Court, and I’m preparing my brief of appellant now. I’d like to reuse the arguments in my petition for appeal, but I don’t know if that’s bad form. Do I have to create something completely new?No, not at all. Since your petition succeeded, you shouldn’t feel the need to completely restructure it. That being said, there are a few items that you should change from the petition to the opening brief:

1. In the statement of the case in the petition, I always set forth the date of the final judgment order in the trial court. This allows the court to quickly ascertain that my petition was timely filed. Once the writ is granted, the date of final judgment probably isn’t relevant, so I note instead the date of the writ.

2. My conclusion always sets forth the specific relief I’m requesting, as required by Rules 5:17(c)(7) and 5A:12(c)(6). At the petition stage, that always begins with something like, “This court should award the landlord an appeal, and thereafter reverse . . .” Now that the writ has been granted, I can safely delete the request for a writ, and just spell out what I want the court to do with the case.

3. If you’ve been made aware of an important issue, either in your opponent’s brief in opposition or in questioning by the writ panel, you would be wise to address that in your opening brief. Add a section, or at least a paragraph, to state your position or to put out a fire before it’s kindled.

4. If the court has granted your writ on fewer than all of the issues that you raised in your petition, you need to excise the arguments on the refused assignments when you craft your brief of appellant.

5. Obviously, you should update your case citations to address any new rulings that have come down since the date you filed your petition.

6. In your petition, you cite to pages of the record – the transcript, exhibits, pleadings, etc. At the merits stage, you should convert those citations to appendix cites.

How long does it take for the justices to decide whether to grant me a writ? And when should I expect to receive a ruling on my petition for appeal?Unless you work in downtown Richmond, the writ panel will probably decide whether to grant your petition before you get back to your office on the day of argument. The justices confer the same day and decide which petitions they’ll grant and which they’ll refuse. The ensuing delay between the argument date and the date on which the decision arrives in your inbox is a function of the time it takes to process the paperwork, combined with dumb luck. I usually tell lawyers to expect a decision somewhere between three days and four weeks after the argument.

Incidentally, there’s an urban legend that says that the court first issues orders in the cases where it grants writs, and only releases the refusal orders weeks later. Another such legend insists that the court quickly zaps out refusals in dead-solid-loser appeals, contributing to the joke that “the refusal order was waiting for me in my office when I returned from the argument.” Both of these mutually contradictory legends are untrue; the only factor that influences the timing by which your order will be issued is how far down the stack of files your case happens to be when the clerk receives the batch. That’s the dumb-luck part.

What are opinion days like for you?This is one of my most frequently asked questions, right after, “How do you find time to write all those case analyses?” (The direct answer to that question is, “I reserve the time in advance.”) Here’s a typical opinion day for me:

I go to the gym roughly four days a week, and I ensure that opinion day is always one of those days. Cardio training only; we don’t want to sprain anything in the upper appendages that might affect my ability to type. Doing this really does give me more stamina for the afternoon.

I bring lunch to the office. I normally have lunch out of the office with a couple of my partners, but not on opinion day; on those days, I generally have lunch right here at my desk. I ensure that I have a mid-morning and mid-afternoon snack as well.

I usually keep a reasonably clear desk, to the point that you can see more brown than white on my desktop. But on opinion day, I clear it off completely before 9:30 a.m.

Starting shortly after 9:30, I check the Supreme Court’s website page listing opinions (http://www.courts.state.va.us/scndex.htm). At first, it will contain only the cases released in previous sessions. I keep hitting refresh every few minutes until the new opinions pop up.

When the new decisions arrive, I switch my office phone to Do Not Disturb.

This step involves a confession: When the new decisions hit the wire, I run off copies on paper, instead of just reading them off the computer screen. I recognize that this isn’t as eco-friendly as just using electrons, but I read much faster from paper than I do from a screen. (I do, however, run them off two-sided, to cut the number of pages in half.)

I close my office door. No appointments; no visitors.

I lay the cases out on my desk, organized by case area: one pile for criminal, another for taxation, and so forth. I then pick one up and start reading. Once I’m through with the opinion, I open up Word and start typing analysis. When I’m through with that, I read another opinion and type up that analysis. After I have a couple of analyses done, I’ll post those to the website, pick up another opinion, and repeat the process.

I knock off at a normal hour, usually somewhere between 5:30 and 6:00 p.m. I know I can’t get everything done in one day, and there’s no use in frying myself trying to do so; I just leave the unfinished decisions for the next day (generally a Saturday).

So how do you decide in what order you’ll read and analyze the cases?If there’s a major media-magnet case coming down, I may read that first in anticipation of requests from the media for comment. Otherwise, I give priority to the shorter opinions, so I can post as many analyses as possible the first day. I usually save the longer ones for the second day. I also tend to favor those cases that I know will have a significant effect on day-to-day practice, to the extent I can discern that in advance. The goal is to get the maximum amount of maximally useful information up on the site as quickly as I can.

I got a writ, but I discovered that I needed more time than the 40 days allowed in the rules. I called my opponent to ask for consent for an extension of the deadline for my opening brief, and she graciously agreed. Am I covered if I prepare a motion seeking an extension of time to file my opening brief, and mention my opponent’s consent?No! Unless you’re prepared to file the appendix on time, your motion should also seek an extension of the filing deadline for that as well. If you get an extension for your brief only, and you assume that that applies to the appendix, you will have a couple of phone calls to make after you get the dismissal order from the Supreme Court.

I’m appealing a civil case to the Fourth Circuit, and I’m wondering what my odds are. How often does that court reverse decisions from district courts in civil cases?The news isn’t bright for appellants: In the year ending March 31, 2011 (the 2012 figures aren’t available yet), the Fourth reversed just 7.8% of the time in civil cases. It’s even worse in criminal appeals, where the reversal rate is 4.3%. In case you think that’s an aberration, the numbers for 2010 were 8.4% and 5.8%, respectively. If you want more details, here’s a link to the website listing federal judicial caseload statistics: http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics.aspx

For purposes of Rules 5:11(b) and 5A:8(a), do I need to file the original transcript, or can I file a copy? The rules just refer to “the transcript” without saying whether it has to be the original.You can safely file a copy if that’s what you have. The court is interested in the accuracy of the transcript, not whether it’s the first version produced. You do need to make sure that it’s signed by the reporter; an unsigned draft might not be good enough.

What’s the biggest change in appellate practice that you’ve seen over your career? In one obvious sense, it’s the creation of the Court of Appeals, which didn’t exist when I was licensed in 1982. Having an entirely new court is obviously a big change. Other than that, I’d list two significant developments: the increased time that it takes to make your way through the appellate system, and the rise of an appellate bar. When I began my career, the time it took for a case to get from circuit-court judgment to final decision on the merits in the Supreme Court of Virginia was on the order of 11 or 12 months. Now, in civil cases, I tell trial lawyers to expect a final ruling (assuming the case gets that far) about 18 months after the final judgment below. That affects things like the amount of the supersedeas bond (which must now allow for a year and a half of interest on a money judgment). But more fundamentally, it reflects justice delayed. I wish I had a magic proposal to speed things up, but short of an expansion of the jurisdiction of the Court of Appeals (to mirror the federal system), I don’t know of an easy solution.

When I started practicing, and even many years later, there was no such thing as an appellate lawyer in Virginia. The first one you could classify in that way was probably the Solicitor General of the Commonwealth, an office that was created in 1999. But when I set out in 2004 to establish a purely appellate practice, there was no private-sector lawyer who operated exclusively in that field. Now, several lawyers (including a great many of my friends) have established thriving appellate practices. This represents a shift in the thinking of trial lawyers, who have come to regard appellate practice as a specialized field. Previously, when you tried a case, you were expected to shepherd it all the way through the appellate process if necessary. That isn’t the case anymore.